Smt. Tarani Devi (Mother) Wife Of ... vs Ranjeet Ram (Owner Of Tempo No. ...
2022 Latest Caselaw 3843 Jhar

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                                                                        M.A. No. 146 of 2010


IN THE HIGH COURT OF JHARKHAND AT RANCHI
              M.A. No.146 of 2010
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1. Smt. Tarani Devi (mother) wife of Sri Lato Pasi @ Yamuna Choudhary

2. Lato Pasi @ Yamuna Choudhary son of Sri Darshan Pasi Both resident of Village Chhatabad, Post and P.S. Bengabad, Dist. Giridih .... .... .... Appellants Versus

1. Ranjeet Ram (owner of Tempo no. JH-11B-7965) son of late Murli Ram, Resident of Buxidih Road, Jhinjhari Mohalla, Post- Giridih, P.S. Giridih (T), Dist. Giridih (Jharkhand)

2. Samad Ansari (Driver of Tempo no. JH-11B-7965) son of Md. Irashad Ansari, Resident of Village Buxidih, Post- Giridih, P.S. Giridih (Muffassil), Dist. Giridih (Jharkhand)

3. The National Insurance Co. Ltd. (Insurer of Tempo no. JH-11B-7965) Through Divisional Manager, Divisional Office, Dhanbad, Post and P.S. Dhanbad, Dist. Dhanbad (Jharkhand) .... .... .... Respondents

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For the Appellants : Mr. Arvind Kr. Lall, Advocate For the Respondent no.3 : Mr. Amresh Kumar, Advocate

PRESENT HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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By the Court:-

1. Heard the parties.

2. This appeal has been filed by the appellants against the

judgment and award dated 12.05.2010 passed by the 1st Additional

Motor Vehicle Accident Claims Tribunal, Giridih in Claim Case No.17

of 2005 whereby and where under, the learned Tribunal in an

application under Section 163A of Motor Vehicle Act has awarded a

sum of Rs.2,40,120/- to the claimants and directed the opposite party

no.3- respondent no.3- insurance company to pay the said

compensation amount but as owner of the vehicle could not

reproduce valid and effective driving licence of the offending vehicle

such as fitness certificate, driving licence of the driver of the offending

M.A. No. 146 of 2010

vehicle at the time of accident and permit, hence, the learned Tribunal

gave the right to recover the compensation amount to the opposite

party - respondent no.3- insurance company from the owner of the

vehicle.

3. This appeal has been filed by the claimants only for

enhancement of the quantum of compensation.

4. It is undisputed fact that the respondent no.1-Ranjeet Ram

who was the owner of the vehicle has died on 18.06.2009 but no

prayer for substitution of the legal representatives of him has been

made in this appeal and consequently, vide order dated 09.04.2014,

this appeal has stood abated against the respondent no.1- owner of the

vehicle.

5. Mr. Amresh Kumar the learned counsel for the respondent

no.3- opposite party no.3- insurance company raised the preliminary

objection at the time of hearing of this appeal by submitting that since

the opposite party no.3- respondent no.3- insurance company has

been absolved of the liability to pay the compensation amount to the

claimants because of the violation of the terms and conditions of the

insurance policy by the owner of the vehicle; as the vehicle in question

was driven in absence of any permit and by a driver who was not

holding the valid and effective licence on the date of accident as also

without a fitness certificate and only keeping the welfare nature of the

legislation, the Tribunal has directed the opposite party no.3-

respondent no.3- insurance company to pay the compensation amount

but with a right to recover the same from the owner of the vehicle and

as the appeal has abated against the owner of the vehicle and in case

M.A. No. 146 of 2010

of enhancement of the quantum of compensation by this court as

prayed for by the appellants in this appeal, the same will not be

binding upon the legal representatives of the deceased respondent

no.1 who is the owner of the vehicle. It is next submitted that in this

appeal, the appellant has not challenged the portion of the judgment

and award by which the learned tribunal absolved the respondent

no.3 from paying the compensation amount and saddled the liability

of payment of the compensation on the owner of the vehicle who is

the respondent no.1 of this appeal. Hence, it is submitted that in the

facts of the case, the abatement of the appeal against respondent no.1

amounts that this appeal abates as a whole and the right to sue for the

appellants does not survive against the respondent no.3, insurance

company. Hence, it is submitted that this appeal be dismissed having

abated as a whole.

6. Mr. Arvind Kumar Lall, learned counsel for the appellants

drew attention of this Court to Section 155 of the Motor Vehicle Act,

1988 which reads as under :-

"155. Effect of death on certain causes of action.-- Notwithstanding anything contained in Section 306 of the Indian Succession Act, 1925 (39 of 1925), the death of a person in whose favour a certificate of insurance had been issued, if it occurs after the happening of an event which has given rise to a claim under the provisions of this Chapter, shall not be a bar to the survival of any cause of action arising out of such event against his estate or against the insurer."

And submits that section 155 of Motor Vehicle Act, 1988

entitles the claimants-appellants to maintain the claim application

even after the death of the owner of the vehicle and consequently, the

appeal against the insurance company even if the legal representatives

M.A. No. 146 of 2010

of the deceased owner of the vehicle have not been brought on record

consequent upon the death of the owner of the vehicle and which

resulted in the appeal abating against the owner of the vehicle being

the respondent no.1, may be continued against the estate of the

deceased. Hence, it is submitted that there is no merit in the

submission of the learned counsel for the respondent no.3- opposite

party no.3- insurance company and the preliminary objection be set

aside and the appeal be allowed.

7. Having heard the rival submissions made at the Bar and

after going through the materials in the record, the sole point for

determination that crop up in this appeal:-

"Whether in in view of the fact that the Motor Vehicle

Accident Claims Tribunal has absolved the insurance

company of the liability to pay compensation to the

claimants and thus has given the right to recover the

compensation amount awarded, after paying the said

amount of compensation the claimants, from the owner of

the vehicle, the appeal will abate as a whole consequent of

the appeal having been abated against the owner of the

vehicle being the respondent no.1, because of non-

substitution of his legal representatives?"

8. It is pertinent to mention here that Section 155 of Motor

Vehicle Act, 1988 is an exception to the general principle in the law of

tort that tort does not survive upon the demise of the tortfeasor.

Section 155 of the Motor Vehicle Act, 1988 essentially provides that the

death of the person in whose favour certificate of insurance is issued,

M.A. No. 146 of 2010

if the death occurs after the happening of the event which has given

rise to claim of compensation under the provisions of the Motor

Vehicle Act, it shall not bar the survival of the cause of action arising

out of the accident against the insurer or the estate of the insured but

it must be kept in mind that there cannot be a decree against an estate.

An estate cannot face a litigation for satisfying any decree unless it is

held by some owner or his legal representatives in his absence. Thus,

survival of cause of action contemplated by Section 155 of Motor

Vehicle Act, 1988 can only be against the legal representatives of the

deceased owner and not against his estate as such. Consequently, the

victim of accident arising out of the use of vehicle of the deceased on

the death of the owner of the vehicle during the pendency of action

can continue the action by bringing the legal representatives of the

deceased owner on record.

9. Of course, if the insurance policy is valid and under the

insurance policy, the insurance company is liable to pay the

compensation amount then omission to bring the legal representatives

of the offending vehicle on record may not be a ground for dismissal

of the claim application but here the case is different. Here

undisputedly, the learned Tribunal has absolved the insurance

company of the liability to pay the compensation and saddled the

liability upon the owner of the vehicle. Though it has not been

expressed by the learned Tribunal in so many words but the reason

for giving the right to recover the compensation amount to be paid by

the insurance company from the owner of vehicle; is that the owner of

the vehicle has violated the terms and conditions of the policy in the

M.A. No. 146 of 2010

following manner:

i) by allowing his vehicle to be driven by a driver who was not

having a valid and effective driving licence,

ii) the vehicle in question was not having a fitness certificate showing

that the vehicle was fit for being plied on a public road; and

iii) the vehicle was driven without any permit.

This finding of the learned Tribunal of absolving the insurance

company of the liability to pay the compensation is not under

challenge in this appeal.

10. This Court is of the considered view that no valid and

effective order can be passed against the estate of the deceased owner

of the vehicle being the respondent no.1 of this appeal; in the absence

of his legal representatives being brought on record. Hence, this Court

under such circumstances has no hesitation in holding that because of

the failure of the appellant-claimants to bring on record the legal

representatives of the deceased respondent no.1- owner of the vehicle,

even after the death of the respondent no.1 and consequently as this

appeal abated against the respondent no.1, this appeal abates as a

whole. The sole point for determination is answered accordingly.

11. In view of the discussions made above, this appeal abates as

a whole.

12. Let a copy of this Judgment along with Lower Court

Records be sent back to the concerned learned Tribunal forthwith.

(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 21st September, 2022 AFR/ Sonu-Gunjan/-